United States District Court, E.D. California
ORDER DENYING PLAINTIFF'S FIRST MOTION FOR
MODIFICATION OF THE COURT'S SECOND SCHEDULING ORDER (ECF
NO. 240)
BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE
Plaintiff's
Pretrial Statement and Motion(s) for Incarcerated Witnesses
Due: July 15, 2016
Defendants'
Pretrial Statement and Opposition(s) to Motion(s) for
Incarcerated Witnesses Due: July 29, 2016
Plaintiff
Kevin Darnell Bryant ("Plaintiff") is state
prisoner proceeding pro se and in forma pauperis in this
civil rights action pursuant to 42 U.S.C. § 1983. All
parties have consented to magistrate judge jurisdiction. (ECF
Nos. 7, 231.) This action proceeds on Plaintiff's claims
against Defendant Romero for deliberate indifference to
serious medical needs in violation of the Eighth Amendment,
and against Defendants Gallagher and Romero for conspiracy,
retaliation in violation of the First Amendment, and failure
to protect in violation of the Eighth Amendment.
On
March 30, 2016, the Court issued its second scheduling order
in this matter, setting forth various filing requirements and
deadlines, including for Plaintiff to file his pretrial
statement and motions for the attendance of incarcerated
witnesses no later than July 6, 2016. (ECF No. 234.)
Currently before the Court is Plaintiff's motion to
modify that deadline, filed on June 29, 2016. (ECF No. 240.)
Plaintiff seeks a sixty (60) day extension of time to file
his pretrial statements and motions for attendance of
incarcerated witnesses.
Plaintiff
asserts that he cannot meet these deadlines because (1) he
was on lockdown for some unspecified period in April and May;
(2) he has not been able to access the law library in May and
June for the full 4 hours he is entitled to due to his PLU
status (his submissions show he is given some access, but not
a full 4 hours at all times); and (3) he needs the full name
and addresses of certain witnesses that Defendants were
ordered to disclose to him to draft his motions for the
attendance of witnesses.
Plaintiff
has not shown the necessary good cause to grant his sixty
(60) day requested extension of time. Fed.R.Civ.P. 16(b)(4).
When the second scheduling order was issued in this matter
months ago, on March 30, 2016, Plaintiff was provided Local
Rule 281, which set forth the information necessary to
prepare his pretrial statement. The pretrial statement
largely calls for factual information, descriptions of
anticipated evidence and witnesses, and under Local Rule
281(a)(8), it is explained that extended legal argument is
not required. Thus, Plaintiff does not necessitate the use of
a law library or legal research materials for preparation of
the pretrial statement. Plaintiff's reliance on getting
less than four full hours of legal library access at certain
times does not show good cause for his failure to comply with
that filing that statement by the deadline, especially when
he has admitted to being provided some law library access.
Similarly,
the instructions and standards for seeking incarcerated
witnesses was set forth for the parties in the second
scheduling order, and it shows that the information needed to
prepare such motions is factual, such as describing the
potential witness's knowledge of the events at issue,
submitting declarations of the witness's knowledge, and
provided identifying information. Moreover, although
Plaintiff cites two lockdowns, he does not describe how long
these lockdowns lasted and how they interfered with his
preparation of the necessary filings in this matter, other
than describing some limitations on law library access, which
does not show good cause for an extension here for the
reasons explained.
To the
extent Plaintiff alleges that he is waiting on the address
information Defendants were ordered to provide him to prepare
his motions for incarcerated witnesses, Plaintiff is informed
that the Court is aware it granted Defendants some time to
provide the full addresses of the five incarcerated witnesses
at issue. It will not deny a motion for the attendance of any
of those five potential incarcerated witnesses (Vargas,
Levels, Willis, Contreras, and Lopez) solely for the failure
to provide the full address of the institutions at which they
are currently housed.
Plaintiff
will be provided a few additional days to receive this order
and comply with its requirements to file his pretrial
statement and any motion(s) for the attendance of
incarcerated witnesses, as required by the second scheduling
order. The deadlines for Defendants that correspond to the
brief extension being granted to Plaintiff will also be
adjusted. Plaintiff's request for a sixty (60) day
extension of the second scheduling order is otherwise denied
for lack of good cause shown.
Accordingly,
it is HEREBY ORDERED that:
1.
Plaintiff's first motion for a modification of the second
scheduling order (ECF No. 240) is DENIED;
2.
Plaintiff shall serve and file a pretrial statement and any
motion(s) for attendance of incarcerated witnesses, as
described in the second scheduling order, on or before July
15, 2016;
3.
Defendants shall serve and file a pretrial statement and any
oppositions to any motion(s) for incarcerated witnesses, as
described in the second ...